Why would otherwise dependent judges rule against the
government? This is the central question that Gretchen Helmke
addresses in Courts Under Constraints. Helmke presents a
tightly argued, theoretically and empirically interesting
explanation of why Argentine judges who operate in political
conditions normally associated with judicial compliance rule,
nevertheless, against the government's interests.

Argentina has been characterized by executive control of
judicial appointments and the replacement of Supreme Court judges
with each turnover of power since the 1940s. In this political
environment, judges might be expected to be deferential toward the
government; yet Helmke finds a pattern of antigovernment rulings
clustered at the end of government terms. The explanation advanced
is original and provocative: in the unique context of institutional
insecurity, ruling against the current government helps judges
avoid punishment by a future opposition government.

Courts Under Constraints is organized around an effort to
make theoretical sense of the empirical puzzle of antigovernment
Supreme Court decisions and to test the resulting explanation.
Helmke draws on, and significantly extends, separation of powers
accounts of judicial politics developed in the U.S. politics
literature to provide a new analytical framework for understanding
the Argentine case. Chapters 2 and 3 develop an increasingly
abstract formal signaling model based on incomplete information.
Helmke derives several testable implications for judicial behavior
from the model and carefully develops a straightforward and
coherent rational choice explanation for defection. Chapters 4
through 6 are devoted to applying and evaluating this explanation
in Argentina from the last military regime (1976–83) through the
democratically elected Alfonsín and Menem presidencies and ending
in 2000.

Several core strengths set this book apart in the growing field
of comparative judicial politics. First, Helmke has set a high
methodological standard for comparative analysis of judicial
politics in new and emerging democracies with an ambitious and
systematic longitudinal study of supreme court decisionmaking in a
single-country study. Her quantitative methodology is clear and
logical, historically informed, and qualitatively deepened by
interviews and case analysis. Second, a chief asset of the work is
the explanation itself, "a theory of strategic defection," and the
manner in which this microlevel account of Argentine judicial
politics extends separation of powers accounts of judicial politics
more generally. Third, the model Helmke develops has testable
implications that are supported by the evidence from the Argentine
case but theoretically constitute a general explanation applicable
beyond the single case.

The book advances a novel approach to judicial decisionmaking: a
theory of "strategic defection." The theory was developed to
account for the observed pattern of Argentine Supreme Court
decisions countering outgoing governments. Helmke persuasively
argues that our analytical tools for understanding judicial
behavior, the attitudinal model and the separation of powers
account, cannot adequately explain judicial defection from the very
government that appointed the sitting justices. In developing her
theoretical approach to defection, Helmke both borrows and departs
from separation of powers explanations of judicial behavior.
Separation of powers accounts posit that the choices judges make
are shaped by the political constraints they face; and they
generally explain why judges rule in the government's favor even
though they would prefer not to (24). When justices veer too far
from the preferences of the current government in a separation of
powers political system, they risk negative consequences
(sanctions, such as a legislative override). The possibility of
sanctions, in turn, provides judges with incentives to pursue
politically viable options rather than their most preferred
policy.

Helmke uses the separation of powers logic underlying strategic
judicial behavior but alters a key premise about the source of
constraints. In her strategic defection theory, "the primary threat
to judges comes not from incumbent governments but from incoming
governments" (28). That single premise change allows Helmke to
develop a sophisticated account of "judicial defection as a
distinct form of judicial behavior" and as a rational response by
justices who were appointed by and presumably loyal to the current
administration. The core insight is that "whenever judges lack
institutional security they will face powerful incentives to rule
against the current government, once that government begins to lose
power" (41). Judges' choices under one government affect their fate
under the next, and they will strategically rule against the...

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